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HQ W968063




October 5, 2006

CLA-2 RR:CTF:TCM W968063 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.10.2000 or 6702.90.6500

Mr. Ken August
Easter Unlimited, Inc.
80 Voice Road
Carle Place, NY 11514

RE: Classification of Styrofoam pumpkin covered with foil; NY G88449, dated April 12, 2001.

Dear Mr. August:

This is in reference to New York Ruling Letter (NY) G88449, issued to you on April 12, 2001, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUSA), of a Styrofoam pumpkin covered with foil. The article was classified in subheading 6702.10.2000, HTSUSA, which provides for “[a]rtificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: [o]f plastics: [a]ssembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods." Since the issuance of that ruling, U.S. Customs and Border Protection (CBP) has reviewed the classification of these items and has determined that the cited ruling may be in error.

Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103–182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY G88449 was published in the Customs Bulletin, Vol. 40, No. 32, on August 2, 2006. No comments were received in response to the notice.

FACTS:

The pumpkin is identified as item number 8451, Golden Pumpkin. It is made of Styrofoam covered with orange colored foil. The stem is made of Styrofoam that has been covered with brown paper. The leaves are made of paper that are covered with orange colored foil. The pumpkins are available in sizes 4.5 inches or 6.5 inches. The pumpkins will be packed 12 pieces to a box.

ISSUE:

Whether the pumpkin is classified in subheading 6702.10, HTSUSA, as artificial fruit of plastics or subheading 6702.90, HTSUSA, as artificial fruit of other materials.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Heading 6702, HTSUSA, provides for “artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage and fruit.” The subject foil covered Styrofoam pumpkin is a decorative item consisting of a foamed plastic shape covered with foil. Thus, for tariff purposes, it constitutes a good consisting of two or more substances or materials. As such, the item is arguably classifiable under subheading 6702.10, HTSUSA, as artificial fruit of plastics or subheading 6702.90, HTSUS, as artificial fruit of other materials, if the foil is not of plastics. Accordingly, it may not be classified solely on the basis of GRI 1. See, GRI 6 which states, in part, that the classification of goods in the subheadings of a heading is to be according to the terms of those subheadings and any relative section and chapter notes and, by appropriate substitution of terms, to Rules 1 through 5. Further, GRI 2(a) is inapplicable because it applies to incomplete or unfinished articles, and the foil covered Styrofoam pumpkin is imported in a finished complete condition. GRI 2(b) states that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. As the subject foil covered Styrofoam pumpkin is a composite good, we must apply rule 3(b), which provides that composite goods are to be classified according to the component that gives the good its essential character. We must determine whether the foamed plastic pumpkin or the foil imparts the essential character to the article.

EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods."

The internal foamed plastic pumpkin may provide the bulk and shape, however the surface foil that covers the Styrofoam pumpkin provides the texture, markings and color. The foil imparts the visual impact, consumer appeal and nature of the article. The essential character of the foil covered Styrofoam pumpkin is the foil. The foil covered Styrofoam pumpkin is accordingly classifiable in subheading 6702.10.2000, HTSUSA, if the foil is plastic or subheading 6702.90.6500, HTSUSA, if the foil is metal. We encourage you to seek a new ruling with a complete description of the pumpkin to determine the applicable subheading.

HOLDING:

The foil covered Styrofoam pumpkin is classified in subheading 6702.10.2000, HTSUSA, if the foil is plastic or in subheading 6702.90.6500, HTSUSA, if the foil is metal. We are not able to provide a more specific classification at this time without a sample of the foil covered pumpkin at issue.

We invite you to request a new ruling on the foil covered pumpkin pursuant to Section 177 of the Customs Regulations to obtain a more precise classification of the foil covered pumpkin.

EFFECT ON OTHER RULINGS:

NY G88449, dated April 12, 2001 is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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